BALI MAWACARA: IS A QUASI-COMMON LAW SYSTEM DEVELOPING IN BALINESE CUSTOMARY LAW?

Internationally renowned as a tourist destination, the Indonesian Island of Bali displays a rich and colorful culture which has served as one of the many explanation for its global reach. Its primarily Hindu population is visibly seen through a rather invisible disposition that perpetuates itself through the Balinese customary legal system which influences daily life. This autochthonous legal system exists in plurality with the Indonesian state legal system. As with all legal systems, the Balinese customary law system is in a state of flux. This article will examine the foundational sources and purposes of authority in the Balinese customary law system and analyze the pressures of change upon that system. It will be argued that an embryonic quasi-common law system is developing within the opus of Balinese customary law system due to the recent formation of the Majelis Utama Desa Pakraman (Pakraman Primary Village Council) and the Bali Mawacara jurisprudence.

island's political as well as economic positions. The acceptance of Hinduism allowed local rulers to receive Brahmanic consecrations. 1 In India the term 'Hindu' refers to the Siwaist and Wisnuist religions whereas in Bali, the reference of Hinduism is also associated with a myriad of other spiritual practices which includes Buddhism. 2 Balinese culture integrated Hinduism with existing religious traditions, evolving into the Hindu Dharma Bali religion which combines Hinduism, Buddhism and local animistic beliefs. There are three elements that are incorporated within the practice and understanding of the religion and this includes: philosophy (tatwa), ethics (susila) and ceremony (upacara).
There are five principle philosophical aspects of Hinduism that are implemented by the Balinese and there are the concepts of: Brahman (the existence of a supreme God), Atman (the eternal spirit or soul of each human), Karmapala (people are supernaturally rewarded or punished according to their deeds), Punarbawa (reincarnation), and Moksa (the goal of union with God). 3 Known as panca serada, these formulate the major elements of tatwa which is a tripartite approach to most aspects of life and death adhered to the Balinese. That tripartite approach focusses on the relationship between the Balinese Hindu with God, among themselves as well as the state of the physical environment owned by the Balinese Hindu people. This parihyangan-pawongan-palemahan 4 approach has in more recent times been articulated as Tri Hita Karana, translatable as the Three Sources of Happiness. 5 A Balinese Hindu village that promulgates its own customary law is known in the local language as a desa adat. Each desa adat has at least one sub-unit known as a banjar; a typical desa adat will have a few banjar. 6 The banjar is a social group which has its own building (bale banjar) that behaves as a physical hub of social activity in the desa adat. The nature and requirements of the desa adat can vary from one village to another. Typically, the more modern desa adat is closer to the intra-national and inter-national activities in Bali such as government offices and tourism activities which prescribe less onerous requirements on their members compared to the more remote and traditional desa adat. 7 The typical desa adat will also have its own tripartite temple complex known as Pura Khayangan Tiga. 8 In addition, the significant social constructs affecting Balinese customary law include the paternal kinship system (kapurusa) and the caste system (kasta) that divides the whole Balinese population into four sections that historically determined vocation within traditional Balinese society.
Finally, the whole of Bali forms one of 34 provinces of the Republic of Indonesia. Legal pluralism is an uncontested concept in the Indonesian legal landscape. The validity of specific laws and questions of jurisdiction do arise from time to time. For example, the Supreme Court of Indonesia has determined that a defendant who has already been punished under customary law cannot be prosecuted again for the same offence in that court. 9 But the existence of legal pluralism is beyond contention.
While these villages which are rooted towards customary practices (desa adat) is recognized in Indonesia, 10 the formulation of customary law (awig-awig) takes into account, 11 the Constitution, Pancasila (guiding principles) or human rights. 12 Bali's position in the Republic of Indonesia gives rise to a duality of village identities that exist in almost every Balinese village which are the customary villages (desa adat) and the official villages sanctioned by the government (desa dinas). The village is simultaneously part of the Indonesian state (as a desa dinas) and thereby is accountable under the government apparatus and the jurisdiction of the Republic of Indonesia. However, there are villages which establish its own norms and community governance communicated as a desa adat. 13 For example, the krama (members of the desa adat) may meet in the community building (bale banjar) for the customary law purpose of discussing and deciding upon amendments in one instance, and in the next the community building can be utilized one day and the next day the same people may again meet in the bale banjar to vote in a national election. While the people and place overlap, the leadership of the desa dinas and the desa adat do not. Those roles are kept separate and filled by different individuals in order to avoid potential confusion. All individuals who reside in the village will come under the jurisdiction of the desa dinas but only the krama will come under the jurisdiction of the desa adat. By far the majority of villages have only a small proportion of residents who are not krama.
The most commonly asserted primary source of authority for customary law in Bali is the traditional village -the desa adat, also known as desa pakraman or desa dresta. 14 The desa adat is a 'unified legal community' in Bali, governed by its own customary law, which maintains its own Hindu tradition, territory and wealth and asserts its own legal autonomy. 15 Additionally, the desa adat is recognized by the Indonesian Constitution. 16 The desa adat produces its own awig-awig that may be written or unwritten. 17 In addition to the desa adat there are many subak -the traditional irrigation societies in Bali. 18 Irrigation is essential to Balinese agriculture which is dominated by wet-rice horticulture. Each land-owner in a given area belongs to the subak of that area. The subak are also sources of customary law in Bali, producing their own awig-awig. 19 This paper will focus on the desa adat rather than the subak as the awig-awig of the subak are limited to matters in respect of irrigation whereas the awig-awig of the desa adat are concerned with many aspects of life.
Each desa adat has its own governing board made up of various functionaries (prajuru) such as a chairman (bendesa), secretary and treasurer. 20  of the desa adat form a body politic known as krama desa. Before the leadership approve a particular awig-awig a village meeting (paruman) of the krama desa will be called in which the proposed law will be discussed. The parihyanganpawongan-palemahan philosophy is applied to the proposed law with the objective of seeking to maintain a natural and supernatural balance, order and peace for the desa adat. In so doing, relationships amongst the krama, relationships between krama and the environment and relationships between the krama and God are all considered. The bendesa also has the authority to serve as mediator when required. 21 The krama desa make collective decisions via a process of discussion and consensus known as musyawarah before enacting the awig-awig. 22 As such the awig-awig can be described as having a type of democratic nature. Generally speaking, this democracy is direct since all krama desa members are able to contribute directly to the musyawarah. 23 The awig-awig can be changed by the musyawarah process without reference to precedent or other similar restriction, however the awig-awig cannot contradict Indonesian state law. 24 Maintaining natural and supernatural order is a primary purpose of Balinese customary law according to the Balinese Hindu philosophy of parihyanganpawonga-palemahan. Accordingly, Balinese customary law is continuously seeking cosmic balance 25 . Customary law in Bali seeks to restore order after there has been a violation. In Indonesian jurisprudential terms this is referred to as rechtsherstel. The most common type of penalty imposed in order to accomplish rechtsherstel is compensation. A criminal offence in Balinese customary law causes disorder according to the Balinese Hindu philosophy of parihyangan-pawonga-palemahan: disorder in the natural society and disorder in the supernatural realm. Therefore the compensation may be natural (transfer of things of natural value from the perpetrator to the victim and/or the village), supernatural (transfer of things of supernatural value from the perpetrator to the victim, the village and/or a supernatural entity) or a combination of both. 26 Balinese customary law regulates most areas of human behavior common to life in Balinese villages. Given that maintaining social and cosmic order is a primary purpose of Balinese customary law, it is not surprising to find that a significant number of awig-awig exist on the topic of regulating sexual relations, especially those outside of marriage that can or do result in pregnancy. 27 Nor is it surprising to find that specific laws exist in relation to interference with sacred objects. 28 The customary law duties (ayah-ayahan) that are the responsibility of the krama are many and can be onerous. 29 Examples include attending community meetings and contributing towards social activities such as weddings. Accordingly, awig- awig exist that prescribe penalties for breaching ayah-ayahan requirements. 30 The sanctions serve as motivation for the krama to contribute to the desa adat in ways that accomplish order according to the parihyangan-pawonga-palemahan philosophy. As in other parts of Indonesia, Balinese customary law is grounded in cultural norms such that it enjoys wide adherence and legitimacy. 31

III. THE CONCEPTION OF THE PAKRAMAN PRIMARY VILLAGE COUNCIL
The Balinese concept of every desa adat having its own authority to enact awig-awig as binding customary law in relation to its own members means that each desa adat is autonomous, yet there are many desa adat. 32 This means that each desa adat exists as network of autonomous villages that are place in different jurisdictions. Traditionally this has been the case with no form of hierarchy in the system. However, around the turn of the last century, a significant number of desa adat leaders mobilised to hold meetings to discuss how best to provide coordination and leadership with the aim of strengthening the desa adat in the era of globalisation. 33 These meetings culminated in the so-called Paruman Agung (Great Conference) in 2004 which resolved to seek the establishment of the Majelis Utama Pakraman Desa (the Assembly of the Traditional Balinese Villages; the Desa Adat Assembly).
The Paruman Agung was held at the wantilan (large meeting hall) of the Samuan Tiga temple, an auspicious location for the purpose as it was at Samuan Tiga that the Hindu religion in Bali was brought from a state of disorder to one of order by the legendary Mpu Kuturan. At the time, around 1000 AD, there were a number of Hindu sects in Bali, often jostling for position and causing social disruption. In response to the disorder, the king called a meeting of the leaders of the various sects to deliberate on the best way forward. Mpu Kuturan chaired the discussions which resulted in the leaders agreeing on the Tri-Murthi (Three Forms of God) formulation of Bhraman (the creator), Wisnu (the sustainer) and Siwa (the disintegrator) as the basis of the pan-Bali Hindu religion, thereby resolving the issue of social fragmentation. 34 The Tri-Murthi formulation now manifests in virtually every desa adat in Bali with the tri-partite temple complex of Pura Kahyangan Tiga wherein Bhraman is worshipped in the Desa temple, Wisnu is worshipped in the Puseh temple and Siwa is worshipped in the Dalem temple. 35 This Tri-Murthi/Pura Kahyangan Tiga formulation has become so widely accepted that it has become the standard design of a desa adat in Bali. 36 Therefore, by holding the Paruman Agung in the wantilan of Samuan Tiga, something of the history and the spirit of Mpu Kuturan and his unifying and strengthening endevours may be considered to be imbued in the outcome of the meeting.
By 2001 the Balinese Provincial Parliament (part of the Indonesian national government) had already enacted legislation 37 for the establishment of a new agency aimed at regulating certain aspects of customary law produced by the desa adat. This new agency was established to mirror the state hierarchy apparatus at the district (kabupaten) and sub-district (kecamatan) levels. But following the Paruman Agung of 2004 the Balinese Provincial Parliament enacted a provincewide agency in addition to the earlier and lower level of agencies pertaining to customary law. 38 This agency is now known as the Majelis Desa Adat 39 (Assembly of Customary Law Villages). The most common method of referring to the organisation generally is with the acronym 'MDA'.
According to the legislation, the MPA has broad authority summarised as follows: 1. Discuss and resolve by consensus problems of custom and religion that are important to the desa adat, 2. To resolve disputes that exceed the jurisdiction of a single desa adat (such as an inter-village dispute, interpreting (tafsiran) challenging awig-awig texts, or an appeal from a desa adat decision), and 3. To assist the Hindu religious and cultural organisations in Bali. 40 With this legislative authority the MDA has articulated, formulated and championed relevant matters with external bodies such as national and provincial government agencies and investors on behalf of desa adat, and provided services to desa adat, such as advice on drafting awig-awig, all with the aim of strengthening the desa adat. 41 The MDA also acts as a type of law reform body in that it may give a ruling that a particular customary law is still valid or not valid. 42 It is important to maintain the distinction between the desa adat as the source of authority for Balinese customary law of each village and the Balinese Provincial Parliament (as an instrument of the Indonesian national government) as the source of legislation that established the MDA. These two very different sources of authority give rise to legal infrastructure that have, since 2004, shared an intersection in the legal pluralism landscape of Bali. This arrangement reflects a similar situation in native title law in Australia, that is that even though the parliament has enacted legislation that regulates native title law in Australia, 43

IV. HOW HAS THE MAJELIS UTAMA DESA PAKRAMAN INFLUENCED THE TRADI-TIONAL CUSTOMARY LAW-MAkING pRACTICES IN BALI?
The major development in jurisprudence is not in the intersections between Indonesian state law and customary law as that has existed since the establishment of the nation. The most revolutionary development in jurisprudential terms is the potential for the MDA to usher in an era of unification and standardisation of Balinese customary law via its functions, thereby creating what could be described as a "quasicommon law system" of customary law in Bali. The use of the term "common law" in this context is not an attempt to link Bali to the English or Western legal traditions 45 in any positional sense. The term "common law" is used here to gleam something of the embryonic condition of the English common law when William the Conqueror rode from county to county, holding court and unifying elements of the already existent law of the land. 46 The context of modern Bali is very different to that of England circa 1066AD. One example will suffice to demonstrate the point: while King William enjoyed all authority, the MDA enjoy only persuasive authority. Nevertheless, the MDA is able to exert what we are calling a "centrifugal force" in respect of Balinese customary law upon all desa adat in Bali -something that has never existed before the establishment of the MDA.
In Bali, each desa adat asserts its own autonomy without sensing the need to appeal to an external or hierarchical source of authority. In the Balinese context it is axiomatic that every village has its own customs, so much so that the maxim desa mawacara (translatable as 'every village has its own customs') is asserted and relied upon without contention. Upon this axiomatic maxim each desa adat confidently builds its own customary law. The Balinese Provincial Parliament also recognises the original authority (otonomi asli) of the desa adat to organize their own domestic affairs. 47 While the desa mawacara maxim is well established, a newer jurisprudential proposition has been floated by Professor Wayan P Windia, 48 namely, Bali mawacara -'Bali has its own customs'. Like the desa mawacara maxim, it is hard to deny the obvious accuracy of the statement. But just as the desa mawacara maxim provides a secure construct upon which each desa adat can build its own customary law, so too does Bali mawacara provide a highly persuasive construct upon which a pan-Bali customary law jurisprudence can be developed. The Bali mawacara maxim was popularised by the MDA and has just this year (2019) received positive law endorsement with the enactment of Peraturan Daerah Provinsi Bali Nomor 4 Tahun 2019 which recognises Bali mawacara as one of the foundations of Balinese customary law. 49 The persuasive force of the maxim is aided by the relatively recent role played by the MDA as the government agency that resolves cross-jurisdictional disputes and appeals. One of the most influential and potentially controversial roles of the MDA is tafsiran (legal interpretation) of awig-awig. Like other appeal tribunals, the MDA may be required to interpret an ambiguous text or 'discover' the jurisprudence in order to resolve the matter. When a case is brought to the MDA it originates from one or more discreet desa adat, however the tafsiran that is pronounced by the MDA is considered highly persuasive for all desa adat throughout Bali. 50 Accordingly, the MDA exerts a centrifugal force upon desa adat customary law enactment and decision making via the highly persuasive nature of its interpretations of awig-awig. This creates, or at least has the potential to create, a quasi-common law approach to modern Balinese customary law.
In the common law system, the combination of court hierarchies and the doctrine of precedent (stare decisis) exerts a strong unifying force upon case law jurisprudence such that notwithstanding numerous jurisdictions and levels of courts it is nevertheless the case that there is only a single common law in Australia. 51 By no means is this exactly the case in the Balinese customary law system. In Bali each desa adat has its own inherent and independent authority yet the maxim of Bali mawacara and the application of MDA interpretations of awig-awig to all desa adat combine to exert a unifying force upon Balinese customary law akin to a quasi-common law approach. The central MDA may not strictly be a hierarchical body, nor is Bali mawacara a binding authority, but combined they exert a highly persuasive force upon Balinese customary law development.
On the ground, the receptivity towards MDA tafsiran and the openness towards Bali mawacara vary. Some tafsiran are considered more contentious than others. Traditionally, the practice of Balinese customary law has been that only the male descendants have been entitled to receive an inheritance. In 2010 the MDA pronounced a tafsiran which radically changed inheritance law from permitting only men to inherit their parents' wealth to men and women being eligible for equal shares of the inheritance. 52 This tafsiran received much media attention and remains controversial, radical and almost completely unimplemented almost 10 years later. 53 Although the term desa adat refers to all customary law villages in Bali, there are, in practice, different types of villages in socio-legal terms. The biggest difference between the villages is the degree to which modernity and globalisation have impacted them. Thus a village close to the capital city of Denpasar will have experienced a greater exposure to these forces than will have a village up in the mountains.
Desa Adat Panjer can be described as an inner city desa adat in the capital city of Denpasar. The current bendesa adat of Panjer is Professor I Nyoman Budiana. The physical context of Desa Adat Panjer is that of a modern suburb of Denpasar. Many of the traditional ways of life in the village have been or are in the process of being replaced with new ways. Old restrictions upon social mobility placed upon the low caste (sudra) have eroded. Now sudra caste people are occupying the highest levels of local government and academia, such as Budiana himself. 54 Budiana asserts the autonomy of Desa Adat Panjer yet welcomes the role of the MDA in its capacity to represent the desa adat collectively to external agents and to advise the desa adat collectively on particular issues, such as how to handle external investors. 55 In Desa Adat Penatih, a village on the outskirts of the capital city of Denpasar, the former bendesa adat, I Wayan Sana, describes the members of his village as being quite receptive to applying MDA interpretations in general terms to the local context. In terms of Bali mawacara Wayan Sana sees that such a jurisprudence is inevitable in time. 56 Ketut Pradnya is the current bendesa for Desa Adat Selat in Bangli. In contrast to Desa Adat Penatih and Desa Adat Panjer, Desa Adat Selat is geographically far from the cosmopolitan city of Denpasar and its awig-awig regulate a far more traditional way of life. Unlike the desa adat closer to the city, not all krama (official members of the desa adat) have a voice in decision making. In Desa Adat Selat, only those people who have a traditional desa adat plot of land known as karangan are eligible to become krama. Furthermore, the decision makers are limited to the original number of heads of families in the village. As the members of a particular family increase, that family still have only one voice in desa adat village making. Perhaps due to the remote location and the traditional way of organising the customary law, Desa Adat Selat has not had any new people become krama in living memory. Desa Adat Selat remains quite traditional yet bendesa Ketut Pradnya considers the advent of the MDA to be a relevant and positive one, especially in terms of the MDA being able to provide leadership to the otherwise unrepresented and unorganised desa adat in the era of globalisation. 57 This extremely limited but representative survey of desa adat attitudes towards the MDA suggest that desa adat in varying socio-legal contexts have basically positive attitudes toward the role of the MDA, including its facilitation of Bali mawacara.
In addition to providing advice to the desa adat on how to draft awig-awig 58 and how to handle external investors, 59 the MDA have also published guide books advising desa adat on a wide range of issues, including how to manage desa adat security matters, 60 desa adat financial services 61 and even on the topic of desa adat members with HIV/AIDS! 62 Furthermore, the MDA have published a 'Question and Answer'type book that provides expert responses to a very wide range of topics connected to Balinese customary law. 63 The potential for these types of books being published by the MDA is that the answers to the questions set standards that should reasonably be applied to all desa adat throughout Bali, thereby facilitating momentum towards Bali mawacara.
With the development of Bali mawacara, it may be feared that the desa adat will unwillingly lose the ability to enact their own awig-awig. Such a fear, however, is unreasonable. The desa adat assert their own jurisdiction and authority to make awig-awig as well as having a Constitutional authority and provincial parliament authority to do the same. 64 Secondly, the individuals who hold positions in the MDA are appointed by the desa adat, so if the desa adat ever considered a correction to the MDA was in order they could effect that correction themselves. 65 Thirdly, the tafsiran and other communiques of the MDA have persuasive authority only; legal teeth occur when the desa adat implement their own awig-awig reflecting the substance of the MDA policy.
An additional impact of the MDA is in the way traditional customary law is practised in Bali. Legal systems may be categorised in various ways. Mattei proposes an approach to categorizing legal systems based on the operation of the law within the system. He offers three categories of which any legal system will be comprised in varying proportions. The categories are professional, political and traditional. 66 Interestingly, the effect the MDA is having in Bali is to increase the professionalism of the practice of customary law through improved records, statutory drafting and the inclusion of human rights.

V. CONCLUSION
Customary law in Bali has existed for hundreds of years, if not longer. In all of that time there has never been any form of institutional hierarchy nor jurisprudential device that has exerted a unifying force on Balinese customary law. That is until the development of the MDA a bit over a decade ago and the formal recognition of Bali mawacara in 2019. With these two developments, Balinese customary law now experience two persuasive forms of authority which exert a centrifugal force with the potential to significantly unify Balinese customary law in the future.
Given the recent legislative recognition of Bali mawacara as one of the foundations for developing customary law in Bali, it is timely and appropriate to consider how Bali mawacara itself should be developed in the near future.
Our suggestions are offered in two regards: practical and philosophical. On the practical front, we suggest that the topics of Balinese customary law be divided into three categories according to how responsive they are likely to be to the Bali mawacara approach -that is, likely unresponsive, likely somewhat responsive and likely highly responsive -and for the MDA to focus on those categories of law that are more likely to be responsive. In terms of philosophy, we encourage academics and others to consider the unifying role that the Besakih Temple and other related sacred sites has played in the history of religion in Bali and to consider jurisprudence that draws upon this unifying force. This approach is consistent with the 2019 legislation enacted by the Balinese Provincial Government which recognises Besakih as a spiritually unifying force for customary law in Bali. 67